Sexual harassment in the workplace

The female worker filed suit claiming damages suffered during her job held with the defendant company as a result of sexual harassment by her boss, also in the employment of the defendant.

The plaintiff described that, as soon as she started work at her job, her boss began making remarks and insinuations of a sexual nature and that these increased in intensity over time.

The plaintiff stated that she sought out the owner of the company and described the situation in an interview but that he disregarded her claims, which is why she felt forced to resign.

The lower court rejected the claim for damages considering that it had not been proven that the behavior attributed to the boss included a threat that would jeopardize the plaintiff's job by imposition of an undesired sexual behavior.

The lower court interpreted that it had not been proven that the owner of the company was aware of harassment by the senior employee.

Tribunal I of the Civil and Commercial Court of Appeals of Lomas de Zamora revoked the first instance decision and found that the company and the senior employee had to pay moral and psychological damages.

The Tribunal, through numerous assumptions and in view of their precision, gravity and concordance, held that the existence of sexual harassment by the boss of the plaintiff and the employer’s lack of reaction were sufficiently proven.

In relation to the concept of "sexual harassment", the Tribunal completed an extended analysis of legal scholarship and case law from different countries, described briefly in the following terms: to persecute or molest a worker, female or male, on account of sexual motives, persecution that is based on the existence of a contract of employment -as a result and on occasion of a job-, and a relationship of management or seniority, a situation that implies a matter of discrimination in the working community for the female or male worker who does not accept the sexual advances or harassment and produces changes in working conditions, suspension or any other form of impairment to human condition or working status, representing thereby the restriction of a personal right to decide.

Although there is no specific norm in Argentine law that deals with sexual harassment, the Court interpreted that article 1071 (bis) of the Civil Code is applicable in that it provides that "He/she who arbitrarily interferes in a third person's personal life, so that it is mortifying thereto, in relation to custom or feelings, or perturbs in any way intimacy, and that it were not a criminal offense, shall be forced to cease such activity, not having ceased earlier, and to pay an indemnity that the Judge shall establish in equitable form, in accordance with the circumstances".

The Tribunal added that the right to a person's intimacy is grounded, among other reasons, on the provisions of article 19 of the Constitution and that this is an exceedingly personal right that protects any person against any form of perturbation of their feelings and private life. In that respect, an offense to said right may result in sexual harassment in the workplace.

Therefore, once the facts invoked by the female worker in relation to the existence of sexual harassment had been held duly proven, the Tribunal revoked the first instance decision and decided that the employer and the boss of the plaintiff shall pay the amount of Argentine Pesos 5,000 as moral damage and the amount of Argentine Pesos 1,000 as psychological damage.

This case breaks new ground as it condemns the employer for not reacting to the events. According to this new precedent employers should react proactively to similar circumstances in order not to be accused as in this case.

Civil and Commercial Court of Appeals of Lomas de Zamora, Province of Buenos Aires, Tribunal I, November 19, 2002, “M.L.B. vs. Isa, Juan et al”.